BLOCKADE

I.143.1

BLOCKADE is the shutting out of neutral commerce from access to an enemy's ports or coast. The right of blockade can not be confined to ports or fortified towns alone, as has been sometimes urged. It may include, the entire coast line of a state, with all harbors, mouths of rivers or localities of any sort where goods can be landed. For the object of a belligerent in laying blockade is to prevent trade between his enemy and neutral states. Any spot along the coast where this trade could take place can therefore be blockaded. But if a river or other waterway serves as the boundary between the hostile and a neutral state, only the enemy's portion can be closed.

I.143.2

—some writers found the unquestioned right of a belligerent to shut out neutral trade from his enemy's shores, upon the sovereignty which he was acquired, by occupation, over its coast sea, in the course of his blockading operations. But this is not a good explanation. For, first, the sovereignty over waters near a coast is simply an incident to the possession of the coast itself, and not separable from it. And again, many of the operations of a blockade take place far beyond that distance from the shore which is the accepted limit of territorial waters, and therefore outside of the jurisdiction formerly claimed by the hostile state. So that a blockade has greater extent than a simple transfer of sovereignty can account for.

I.143.3

—The true basis of the right of blockade is to be found in the general right, which every belligerent possesses, of distressing his enemy and weakening his powers of resistance by cutting off his foreign trade. Incidentally this may injure the neutral too, but plainly that is not the object of the act; it results from the necessities of war; and the neutral who may gain in other ways, in marketing certain products or in his carrying trade, must be content to lose in this. The part which blockade may play in warfare is readily seen in our own recent history. So long as the ports of the southern confederacy were open, and the south could exchange its cotton and rice and tobacco for European manufactures, its power of resistance could be indefinitely prolonged. But with its ports closed to foreign commerce, unable to market its products or supply its necessities abroad, it was at an immense disadvantage from the outset.

I.143.4

—Since blockade is a belligerent right, its observance is a neutral duty. Yet the onus of prevention is not laid upon the neutral, nor can a breach of blockade be considered a municipal offense, which he is bound to take cognizance of.

I.143.5

—If the neutral ship owner tries to run a blockade and is caught, his property suffers penalty, just as dealers trying to introduce provisions into a besieged town would lose their venture. The principles involved in siege and in blockade are somewhat the same, but the two should never be confounded. For siege implies a trying to get in, as well as a shutting out, on the part of the besieger, and is a term in land warfare; while blockade is simply restrictive and preventive, and the term applies solely to traffic on the sea.

I.143.6

—The declaration of blockade is a sovereign act, open, generally speaking, only to the highest executive authority of a state. Yet it has been delegated sometimes to lesser authorities—a fleet commander, for instance, with instructions to blockade a certain port at his discretion. But to-day, when all parts of the world are reached by telegraph, such discretionary powers would not be necessary.

I.143.7

—Since a blockade is a very serious limitation upon the rights and interests of neutral states, the neutral has a right to demand a certain efficiency in its operations, and a due notice of their beginning and end, before he is bound to recognize it as valid. Thus, it must be a positive act, and not a mere threat without the power to enforce it, and it must be preceded by notice of the extent of its operations, and their date of commencement. For obviously a neutral ship owner ought not to suffer penalty for failing to respect a restriction of which he is necessarily ignorant. These principles in the course of time have been formulated into rules, so that now, in order to make a capture for breach of blockade valid, three things must be proved: 1, that the blockade is effective; 2, that due notice of it has been given; 3, that there has been an attempt to break it.

I.143.8

—1. Effective Blockade. We proceed to examine these rules more particularly. The first was in doubt for many years, but is now happily settled. There is no general agreement, it is true, as to the number of ships, their arrangement or armament, which shall make any given blockade effective. It has been suggested that an are of circumvallation be drawn about the blockaded point, with ships patrolling up and down along it. But the method of conducting a blockade must differ according to the nature of the navigation, the contour of the coast or harbor, and the importance of the operation. A hundred miles of harborless coast might be patrolled by a single ship, while a port like Charleston would need a number.

I.143.9

—Nor is it inconsistent with an effective blockade that it be occasionally evaded. Some blockade runners made the round trip from Nassau to Wilmington and back almost every month in spite of the blockade, yet it was not considered invalid. It is enough if there is so great risk of capture, in running the blockade, as to make the operation a very dangerous one. No blockade has been or could be land an evasion of which would be impossible. This rule, however, that blockades to be binding must be effective, was aimed at a specific abuse of the system, generally called cabinet or paper blockades—those which do not exist in reality but only on paper. The most striking instances of this, though not the earliest, occurred during the wars between France and England at the beginning of the present century. Prussia, in return for Hanover, went over to France, and closed her ports against England. It was a treacherous act, but if she were resolved upon war, the closing of the ports was a legitimate war measure. England, in retaliation, after trying a milder measure, declared the coast, from the Elbe to Brest, under blockade. It was far beyond the power of the English navy to blockade effectually so great a stretch of coast, with its ports and river mouths and intricate estuaries. So that the declaration of blockade could not be supported by the fact. The ports under blockade were really closed not by a belligerent force, but by a stroke of the pen. The harm and injustice of such a course, to the neutral, is plain enough. Such a method of closing an enemy's ports is not blockade. It is an order to the neutral not to trade with one's enemy, even in innocent, non-contraband property, under penalty of capture and confiscation, which is an entirely different thing from a warning that certain ports or a certain coast are closed to neutral commerce by their blockade. And, as was immediately seer, the system was capable of indefinite extension. For Napoleon, by his Berlin decree of Nov. 21, 1806, laid the whole British coast under blockade, although he had hardly an available ship with which to enforce it, and never intended to enforce it in fact, but simply to exact the penalty for its breach, when neutral ships which had traded with Great Britain came to his ports. Then England, in turn, laid the entire continent under blockade from Prussia to Italy, and Napoleon renewed his Berlin decree with fresh penalties. Neither state justified its stretch of the correct principles of blockade, save as a measure of retaliation. As a matter of fact this retaliation affected neutrals rather than the other belligerents. In their deadly struggle neither combatant regarded the rights of third parties, so long as it injured its foe. When peace returned, and men's passions grew cool, they could look at such acts more calmly, and even condemn what they had themselves before defended. During the Crimean was a correct system of blockade was observed by the allies, and after it, when the representatives of the great powers met in Paris to settle the terms of peace, they took up, among various questions of international interest, this one of paper blockades; and declared as between the signatories that "Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy." This is the fourth article of the important declaration of Paris, of 1856. The United States unfortunately did not accede to this declaration, but had long before, and very consistently maintained the same rule, so that it may now be considered universally adopted.

I.143.10

—II.Notice of Blockade. There must be an actual notification of the commencement of a blockade, before valid captures can be made for breach of it. Common notoriety is not sufficient, without this official notice, even when a blockade has been raised and then renewed again. (The Hoffnung, 6 Rob. 112.) This notice may be of two kinds: a special notice to each ship trying to enter the blockaded port, at its mouth, with the fact of the warning inscribed upon her register; or a general diplomatic notice to all neutral governments. After sufficient time for it to become generally known, this is constructive notice to every captain or shipper in that state. These two forms of notice are sometimes made to supplement one another; for example, the blockade of the ports of the south in 1861. On the 19th of April president Lincoln, by proclamation, put under blockade the ports of the confederacy, from South Carolina to Texas inclusive. A week later this was extended to Virginia But at that time there were but 42 United States ships in commission, and some of these were on foreign stations. How could a blockade of such vast extent be laid, when so few ships were available to make it effective without being open to the charge of being a paper blockade? To avoid this, with the general diplomatic notice was coupled for awhile a special notice at the mouth of each port actually closed; so that in spite of the general announcement, one warning was allowed every ship touching at a blockaded port before capture. Thus each port was brought under the application of the proclamation, only when this was supported by the fact, and a squadron was at its mouth. Though within the letter of the law, this course was unjust to the neutral. For, shut out from all southern ports by proclamation, when only a few were actually blockaded, he was exempt from capture indeed but could not know, at any given moment, which were still open and where he could trade. But no special complaint seems to have been made of this looseness. By degrees, as the blockading force grew larger, the blockade became more extensive and more stringent. And as this occurred, the general replaced the special notice, so that after the effective closing of any port had become notorious, the special notice was no longer given, and capture took place without a warning. A state may thus employ either form of notice at will; it is only the French who think both together necessary—that there must be a diplomatic notification and notice at the harbor's mouth also. The ground for this seems to be the idea that a shipper's or ship captain's knowledge of a blockade, announced only officially, can not be presumed; in other words, that no constructive notice and knowledge of its existence can fairly be ascribed to him. But what, as a matter of fact, is better known than that a certain country is under blockade, whether by hearsay, by public announcement, or through the newspapers, among seafaring men? Upon such matters, within reasonable limits, it is their duty to be informed. The French usage simply opens the door to fraud. What motive can a captain have in visiting a port which he knows to be blockaded, if it be not to evade that blockade, knowing that no penalty can attach until after one attempt?

I.143.11

—With this exception, the usage of maritime states in regard to notice is pretty much the same. When a blockade is raised for any reason, notice of this should be given as publicly and as widely as of its commencement. And even the temporary departure of the blockading squadron is to be considered a raising of the blockade, except only when caused by stress of weather. Thus, if driven away for two days by the enemy's fleet, and returning at once thereafter to its post, it is a new blockade of that port, and fresh notice should be given. This is the rule, though it is not always strictly enforced. Thus, during the blockade of the south, in several instances there was an interval of a number of days between the departure of one vessel or squadron and the arrival of another sent to relieve it, yet no new notice was thought necessary by Mr. Seward, though his attention was called to the irregularity.

I.143.12

—III. Breach of Blockade. There must, lastly, be an attempt to break the blockade, after it has been effectively established and duly announced. This may appear from a ship's actual entrance within the lines of the blockade, or from such circumstances as imply an intention to effect an entrance. Such facts as the avowed destination and actual course of the ship; the owner's instructions; the nature of the cargo, its form of consignment; any irregularity in the vessel's papers, their concealment or destruction, would be carefully looked into by the courts, and might fasten upon ship or cargo an intended breach of blockade. Thus at the very outset of the voyage a ship may be liable to capture; because it has thus taken the first step toward committing the offense. Sir William Scott states this authoritatively (The Columbia, 1 Rob. 154): "I am clearly of opinion that the sailing with an intention of evading the blockade of the Texel, was beginning to execute that intention, and is an overt act constituting the offense. From that moment the blockade is fraudulently invaded." This seems to be the rule adopted by English and American prize courts, though not universally accepted by foreign jurists. Bluntschli, for instance, would attach no penalty to a ship, although intending to run a blockade, until it was so near to the blockaded port as to leave its intention beyond doubt, on the plea that until then its original intention might be changed. Some recent decisions of United States courts*35 have gone still further in inferring this intention to break blockade, by means of the doctrine of continuous voyages. This was applied to ships and cargoes bound nominally to a neutral port, but which appeared to have as their ultimate destination a blockaded port. The touching at a neutral port en route, Nassau, for instance, between London and Charleston, was not allowed to free the voyage, thus far, of its noxious character. It was still held one continuous voyage to a blockaded port.

I.143.13

—A breach of blockade is committed by egress from as well as entrance into a blockaded district. And in this case no notification need be proved. The fact of the blockade is presumed to be known to the place blockaded. But not to be too severe toward neutrals, after the closing of a port, a certain delay is usually granted, to enable neutral ships loaded or in ballast to get away. This was 15 days in the blockade of the southern ports, and in special cases the time was extended.

I.143.14

—Upon these three conditions, then, that the blockade is effective, that notice of it has been duly given, and that its violation is attempted, a neutral ship may be arrested, tried, and, upon conviction, may suffer penalty. This penalty is primarily the confiscation of the ship. The cargo follows the fate of the ship unless its owners can remove it from complicity in the act of the ship by direct evidence. The captain is the agent of the owners of the ship, not always for the cargo too, so that it may happen that a voyage to a blockaded port is undertaken without any interest in such a venture, or knowledge of the existence of a blockade, on the part of the owners of the cargo. But if both ship and cargo are owned by the same persons, the guilt of the latter is conclusive. And in general the presumption seems to lie against the innocence of the cargo. For if not for the cargo's sake, why should a master imperil his ship by attempting a blockade?

I.143.15

—We have already seen that the penalty for attempting to break a blockade may attach at the very commencement of a voyage. It also lasts during the return voyage or round trip, which is looked upon as one transaction. Thus after successful egress from a blockaded port, a ship might remain liable to confiscation during a year's cruise. As soon as the blockade is raised, however, this liability ceases.

I.143.16

—There are two possible exceptions to the rule forbidding neutrals to enter a blockaded port. Neutral ships of war are sometimes admitted, out of comity, on diplomatic errands; and a ship in absolute danger of destruction from accident or storm, may take refuge in it, if no other refuge is possible. A general license to trade granted to the neutral by the government laying the blockade, does not warrant entrance within the blockading lines.

I.143.17

—The penalty for breach of blockade is confined to the ship and its cargo; no punishment can be visited upon the crew. When during the war of secession certain northern officers paroled the crews of blockade runners not to serve again during the war, they were unauthorized, and their prisoners were discharged without condition.

I.143.18

—Pacific Blockade. This, in spite of its title, is not properly a branch of our subject. It should rather be classed among preliminary war measures. It is a contradiction in terms, for blockade implies a war. No blockade can be laid unless excused by the necessities of war, since it would violate the rights of neutrals. Pacific blockade is simply an act of force employed by a strong toward a weaker power, in order to compel it to redress certain wrongs, or pursue a certain line of action. The one state closes the ports of the other, yet without considering this a war measure, or taking any other steps toward war. Thus the allied fleets closed certain ports in Greece, in 1827, in order to force Turkey to do her justice. Whatever may be thought of such an act, the term pacific blockade is to be deprecated.

THEODORE S. WOOLSEY.

Notes for this chapter

End of Notes

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